was injured by the negligence of the man in charge of the engine, this court said: "The only consistent or maintainable principle of the corporation's responsibility is that of agency. Qui facit per alium facit per se. It is therefore responsible for the negligence or unskilfulness of its engineer, as its controlling agent in the management of its locomotives and running cars, and that responsibility is graduated by the classes of persons injured by the engineer's neglect or want of skill. As to strangers, ordinary negligence is sufficient; as to subordinate employees associated with the engineer in conducting the cars, the negligence must be gross; but as to employees in a different department of service, unconnected with the running operations, ordinary negligence may be sufficient. Among common laborers, constituting a distinct class, all standing on the same platform of equality and power, and engaged in a merely incidental, but independent, service, no one of them, as between himself and his coequals, is the corporation's agent; and therefore it is not, on the principle of agency or otherwise, responsible for damage to one of them resulting from the act or omission of another of them, although each of the company's employees would be its agent as to entire strangers to it." This case, and a number of others following it, were reviewed and approved in Louisville, C. & L. R. Co. v. Cavens, 9 Bush, 559, and still later in Greer v. Louisville & N. R. Co. 94 Ky. 169, 42 Am. St. Rep. 345, 21 S. W. 649, and Illinois C. R. Co. v. Hilliard, 99 Ky. 684, 37 S. W. 75. In the last case the conductor of a train was injured by the negligence of a car inspector, and it was insisted that the jury should have been instructed that they were fellow servants, or that the company was at least liable only for the gross negligence of the car inspector. The court held otherwise, and said: "In the first place, the person employed at Mound Station to inspect each car of a train, and ascertain if it is in a safe condition, was not a fellow servant of plaintiff, in the sense of being upon a common footing, and agents of each other. They acted in different spheres, and neither could or was required to know whether the other was properly doing his duty. In the second place, it would have been improper to require 65 L. R. A. the jury to believe the inspector was guilty of gross negligence. The simple inquiry was, as they had been instructed, whether the company, through its inspector, used ordinary care in examining the cars, so as to ascertain whether the ladders attached to each were in a safe condition, for it was the legal duty of the company to guard against every source of danger they could, by the exercise of that kind and degree of care, foresee and prevent; and, while a railroad company cannot be required to insure the safety of a train, it is bound to make a reasonable, proper, and careful examination of each car." In Louisville & N. R. Co. v. Davis, 14 Ky. L. Rep. 716, a switch engineer in a railroad yard was held not to be a fellow servant of a switchman and coupler in the yard. In Louisville & N. R. Co. v. Moore, 83 Ky. 675, a fireman, while acting as engineer, was held to be engineer for the time, and not to be a fellow servant of the brakeman. The same rule has been applied as between the crews of different trains, and it seems to us to be a very unsubstantial distinction between the engineer who runs an engine in the yard, and one who runs it at other stations along the road, as the fireman usually does in switching. Appellee had no control of the engineer in charge of this engine. He had nothing to do with the running of the trains or the running operations of the road. He was engaged in a distinct department, his only duty being to inspect cars. Lastly, it is insisted that the verdict is excessive. Appellee is thirty-four years of age, and was earning $1 a day. He has lost one arm, and does not appear to have received other permanent injury. In no case before this court has it ever sustained so large a verdict for such an injury, and we are all of opinion that the verdict is excessive, and that for this reason a new trial should be granted. We see no other error in the record. Judgment reversed and cause remanded for further proceedings not inconsistent with this opinion. Burnam, Ch. J., and O'Rear and Barker, JJ., dissent, because peremptory instructions were not given. LOUISIANA SUPREME COURT. Mrs. C. E. WHITWORTH et al. บ. worth, in her own behalf, and by Lester Allen Whitworth, the minor son of P. B. Whit SHREVEPORT BELT RAILWAY COM- worth, represented by his guardian, G. W. PANY, Appt. (......La..... ..) Prewitt. A judgment is prayed for in favor of each of the plaintiff's for $15,000. It is alleged that P. B. Whitworth, the husband of one of the plaintiffs, and the *Potts and Whitworth, employees of father of the other, was killed on August 1, the telephone company, were engaged in stretching a line of that company upon its poles. In doing so, the line had to be passed above a span of the electric car system. Potts, upon the telegraph pole, was holding one end of the wire, while Whitworth, upon the ground, holding the other. The latter stumbled, and was in doing so dropped his end of the wire, which fell to the ground, resting upon the span wire below, which, by reason of defective insulation in the hanger by which the trolley wire and the span wire were connected, was heavily charged with electricity. Potts, holding the other end of the wire, instantly, received a shock and fell headforemost, but his spurs caught on a spike on the telephone pole, and he hung suspended in the air. Whitworth ran to his relief, and, catching hold of the wire of his own company, which he had been using, to do so, he himself was instantly killed. Held, that Whitworth, in going to the rescue of Potts, was not in fault, but was acting under a high sense of moral duty, and for his death while engaged in performance of that duty, occasioned by the negligence of the electric company, it is responsible in damages. (February 29, 1904.) 1901, in the city of Shreveport, by an electric shock communicated to his body from the electric wires of the Shreveport Belt Railway Company; that his death was solely due to its utter and wanton negligence in operating a street railway by means of an overhead wire on Texas avenue, without proper insulation, and permitting defective insulations of the trolley hangers to remain in such condition that the current freely passed to the span wire, and thus communicated with the telephone wire, which said Whitworth was engaged in stretching on poles parallel to the said railway company track, and by the shock from which Mr. Potts, who was on the telephone pole, 40 feet from the ground, was shocked and killed. Plaintiffs showed that in the effort to save the life of Potts, who was hanging helpless on the telephone pole as a result of a shock from an electric current transmitted to the telephone wire from the span wire of defendant company, said P. B. Whitworth received a shock which caused him intense agony and pain, and resulted in his death; that said P. B. Whitworth at APPEAL by defendant from a judgment of tempted to pull the wire from the body of Potts when he received the shock. They showed that said P. B. Whitworth was a the Judicial District Court for the Parish of Caddo in favor of plaintiffs in an action brought to recover damages for the al-young man, twenty-four years of age, earning leged negligent killing of plaintiffs' intestate. Modified and affirmed. The facts are stated in the opinion. Messrs. Wise, Randolph, & Rendall for appellant. Messrs. Alexander & Wilkinson and Shepherd & Land for appellees. The briefs are so fully abstracted in the opinion that nothing could be inserted here without needless duplication. Nicholls, Ch. J., delivered the opinion of the court: This action is brought by Mrs. Carrie E. Nola Whitworth, the widow of P. B. Whit *Headnotes by NICHOLLS, Ch. J. NOTE.—For other cases in this series on the question of negligence in voluntarily incurring danger to rescue another person, see Corbin v. Philadelphia, 49 L. R. A. 715, and note; West Chicago Street R. Co. v. Liderman, 52 L. R. A. 655 Becker v. Louisville & N. R. Co. 53 L. R. A. 267; and Pittsburg, C. C. & St. L. R. Co. v. Lynch, 63 L. R. A. 504. $50 per month, supporting his wife and child; that by the reckless indifference of the said railway company to the safety of the public, and its wanton negligence, Carrie Whitworth and Lester Allen Whitworth were deprived of the support of their husband and father. That the pain and agony of P. B. Whitworth before death, after receiving the electric shock, was intense; that said P. B. Whitworth was without fault; and that his death was due entirely to the wanton negligence of defendant company. In view of the premises, they prayed for service of citation and petition on said Shreveport Belt Railway Company, through its president, Walter B. Jacobs, to answer to the demand of Mrs. C. E. N. Whitworth for damages for the pain and suffering, death, and loss of support of her husband, P. B. Whitworth, by said defendant company, in the full sum of $15,000, and the demand of George Prewitt, guardian of Lester Allen Whitworth, son of P. B. Whitworth, for damages to said minor in the full sum of $15,000 in the pain, suffering, and death, and loss of support, occasioned to said minor by the careless killing of his father by said defendant company, and for all necessary orders and general relief. The defendant pleaded the general issue. Further answering, it averred that, if the alleged company or its employees were guilty of any negligence, and that, if the appliances used by it were defective in any way, which was denied, P. B. Whitworth was guilty of contributory negligence which resulted in his death, and he cannot recover. It was agreed between counsel that the evidence taken in the suit of Mrs. Birdie Potts v. Shreveport Belt Railway Company should be used on the trial of this cause, with the right of either party to introduce other evidence. The jury returned a verdict against the defendant in favor of Mrs. Carrie E. Whitworth for $3,500, and against the defendant in favor of Lester Allen Whitworth for $2,500. Defendant appealed. occupying the sides of Texas avenue with its poles and wires. On cross-arms attached to its poles it maintained and operated numerous wires on and along the streets. The electric current with which telephone wires are charged is too weak to be dangerous to human life, but the current with which the trolley of the car company is charged is of deadly potency. Potts's death was occasioned by the telephone wire he was stringing coming in contact with a span wire of the car company. This span wire, notwithstanding its connection with the trolley wire, should have been, through proper insulation, harmless. But it was not. It was deadly dangerous. The insulation at the hanger or ear was gone, if it had ever existed, and the wire was “alive” with likely the same voltage of electricity as was passing over the trolley. This being so, the instant the telephone wire touched it, one end of the wire being on the ground, thus completing the circuit, it (the telephone wire) became likewise charged with the deadly current. At the time Potts was killed, he was up on the pole to which the wire was to be strung. In close proximity was the span wire of the defendant. That it was heavily charged with electricity, there was no doubt. The death of Potts attested this fact. That it was so charged was due to the fact that it had no insulation to protect it from the trolley wire. The wire Potts was stringing had been passed over the span wire. This had been accomplished by means of a rope. Whitworth was westward of the pole Potts was upon. Under instructions from Potts, he was (on the ground) pulling the wire which was being strung. This pulling of the wire kept it taut, and while taut it was free from contact with the span wire. But Whitworth stumbled, and this circumstance caused a slackening of the wire. This slackening of the wire brought it in contact with the span wire, and immediately it became charged with the deadly current. So deadly was the current, that, when Potts was shocked, and This case is the sequel of that of Potts v. Shreveport Belt R. Co. reported in 110 La. 1, 98 Am. St. Rep. 452, 34 So. 103, in which the plaintiff recovered a judgment against the defendant for damages resulting from the death of her husband through its negligence. The following facts are extracted from the report of that case: When Potts was killed he was in the employ of the Cumberland Company, as foreman of a line gang, in stringing its wires upon the poles of that company. In stringing the wires, Potts had with him two assistants, Whitworth and Holt, also in the employ of the telephone company. Under a franchise granted by the city of Shreveport, the defendant company was operating a double-track electric railway on Texas avenue, in that city. It was the overhead trolley system. There was a trolley wire over each track. They were suspended by wires spanning the street, called "span wires." These were attached to wood-hung suspended, and Whitworth, rushing up en poles placed opposite each other on the two sides of the street. The trolley wires were made fast to the span wires by means of what are called "hangers" or "ears." These hangers should be insulated, the purpose being to confine the current of electricity which propels the cars to the trolley wire. Were it otherwise, each span wire would be a "live" or "hot" wire, charged with the same voltage of electricity that the trolley wire had. This would result in so much leakage of the electrical current as to impair its efficiency in the work of operating the cars, and would, besides, render each span dangerous. The Cumberland Telephone Company, also, under a franchise from the city of Shreveport, was to the end of the wire, and, touching the ground in the generous effort to pull it away from Potts, seized it, he was himself instantly killed. This court held in the Potts Case that the defendant was negligent, and rendered judgment in favor of the plaintiff against it. We are called on to determinewhether the plaintiffs in this case are entitled to damages for the death of Whitworth. Defendant's counsel, in their statement of facts, referring to the Potts Case, say: "It will be remembered that Potts, with Holt and Whitworth, was engaged in stringing a telephone wire along Texas avenue, in the city of Shreveport. At the time of his death, Potts was at the top of a pole, endeavoring to place the wire above the span wire of the | attempt to rescue one who was in imminent defendant company. Whitworth, on the and deadly peril through the negligence of ground, had hold of one end of the telephone the defendant; that the spectators were wire, pulling the wire, when he stumbled, thrown into a state of great excitement by letting go the wire, when it fell on the span the horrible sight; some hastened to telewire, which was charged with electricity from phone the power house to turn off the curthe trolley wire, occasioned from defective rent; some cried out, "Cut the wire;" others, insulation. It seems that Potts fell and died "Don't touch the wire;" that Whitworth, the moment Whitworth stumbled and let go seeing his comrade in that horrible predicathe wire." ment, sizzling and frying to death, and hanging head down 40 feet in the air, attempted to cut the telephone wire, and was killed. Counsel say: "Defendant company adopts the only possible defense open to it, that Whitworth was grossly reckless and imprudent; that his widow and child should be denied damages for his death. It has been held that it must be an extreme case to justify refusing damages in a matter of this nature on the ground of the recklessness of the rescuer. This is based on the theory that it is frequently impossible to rescue one in imminent peril without sharing in the danger. It has been further held that due allowance must be made for the excitement caused by the sight of a fellow creature losing his life, and that the danger must not be measured after it is passed, by one who was not present, in apothecary's scales, to determine whether the rescuer exposed himself to more danger than was prudent." The admissions so made as to the negligence of the defendant company bring the issues involved in this case within very narrow compass. It is conceded on both sides that, as soon as Potts received from the telephone wire the electric shock by which he was killed, he immediately fell head downward from the point where he was standing, and, his spurs catching upon one of the spikes on the pole, remained suspended in the air, and that Whitworth, after stumbling and losing hold of his end of the telephone wire, took hold of it again, and was instantly killed. The plaintiffs urge that in so doing he could not be held guilty of negligence, as his act was in aid of an attempt to save the life of his companion and fellow workman, Potts, and any others who might incautiously come in contact with the telephone wire, which was hanging suspended from the span wire. Defendant contends that it was evident to all who witnessed the unfortunate occurrence that Potts was dead when Whitworth caught hold of the wire, and fell dead instantly; that when Potts received the electric shock, and fell from the top of the pole, head down, hanging by his spurs, Holt (one of his assistants) realized that he could do nothing for him but to begin preparations for his interment; that, when he started to ring for assistance to take Potts down, he warned Whitworth not to touch the wire, then down in the mud; that the action of Whitworth was not to save human life, for Potts was manifestly dead several minutes before he took hold of the wire; that others saw it, and he must have seen it, and, moreover, he was warned not to touch the wire by several persons; that, in disregard of this warning, Whitworth, a telephone lineman himself, caught hold of the wire and dropped dead; that his conduct was rash, and recovery cannot be had in the case; that the doctrine held by Rorer on Railroads [p.1029] is to the effect that "it is not a wrongful act to make an effort to save human life if the effort made be compatible with a reasonable regard for one's own safety;" that the same doctrine is announced in 2 Thompson on Negligence, p. 1174, § 21, and in Peyton v. Texas & P. R. Co. 41 La. Ann. 861, 17 Am. St. Rep. 430, 6 So. 690. Counsel of plaintiff, on the other hand, contend that Whitworth met his death in the What can be more dangerous than to throw one's self in front of the wheels of a rapidly approaching train? Yet this court, in Peyton v. Texas & P. R. Co. 41 La. Ann. 861, 17 Am. St. Rep. 430, 6 So. 690, refused to hoid that his efforts to save another were so rash, under such circumstances, as to debar his recovery, saying that the appreciation of the value of human life was so great, and the admiration for heroism so universal, that we know of no case where the court had withheld damages under circumstances like that before it. Counsel say: "The judgment in the case at bar might be well based on the principle that in such a case the rescuer is attempting to save the company from the consequences of its own negligence, and it is not for the company to theorize as to how it might have been done more prudently and with less danger. "Had Whitworth been successful in rescuing his friend, the defendant would have reaped the benefit of his act. He failed, and lost his own life, and it strikes us that it comes with poor grace from the defendant to say he was negligent, and should not have acted with imprudence. There was intense excitement at the place of the accident. The wires were lying loose in a public street, and the excited citizens were crying: 'Cut the wire,' and others, 'Don't touch the wire;' and, in the midst of these exclamations, Whitworth attempted to cut the wire, either for the purpose of saving his friend Potts, or | 126 Mass. 506, 30 Am. Rep. 692.' Manthey to attempt to get it out of the street, and v. Rauenbuehler, 71 App. Div. 176, 75 N. Y. was himself killed. There was no time for Supp. 716. reflection. There was no opportunity for deciding the best course to pursue, and he acted on the moment in the way to him seemed best. According to defendant's counsel, Whitworth should have differentiated between the extreme danger which, under the cases, he could risk, and the imprudence which he must avoid. "That others thought there was a chance to save Potts is shown by the fact that they telephoned defendant's power house to turn off the current, and still others advised the cutting of the wire. It all happened in less time than it takes to tell it. Under such circumstances, what was more natural than for the deceased to attempt to cut the wire? Admitting that there was great danger in the attempt, still there was a chance that it might be done without being injured, and it might have saved the life of his companion. As long as there was a chance to save human life or to prevent injury to others, no court will say that he was recklessly imprudent, particularly against him whose negligence was responsible for the situation. "If there was excitement, and, through panic and fear, reason had lost its proper sway, this excitement was caused by the defendant's negligence, and that, then, would be the primary cause of the accident, and it would still be liable. See Thompson on Negligence, § 197, for a full exposition of the law. This author says: 'If A acts erroneously under the influence of a sudden impulse of fear, or inconsequence of a sudden appearance of danger, caused by the negligence of B, A may recover damages of B, although, if A had not so acted, he would not have been hurt." "This court, in the case of Potts v. Shreveport Belt R. Co. 110 La. 1. 98 Am. St. Rep. 452, 34 So. 103, having held that Potts was without fault, and having awarded his widow damages for his death, it therefore was res judicata that the defendant was negligent, and that Potts was acting with care. Therefore Whitworth was attempting to save his friend, who was without fault, from the consequences of the negligence of the defend ant. "If the condition be such as shows imminent danger of serious injury or death, the rule is to be applied to the act out of which the contributory negligence is claimed to arise, and, when it is coupled with the negligence of another in producing the condition, it will be quite an extreme case which defeats recovery by the court on the ground of contributory negligence. Gibney v. State, 137 N. Y. 1, 19 L. R. A. 365, 33 Am. St. Rep. 690, 33 N. E. 142; Linnehan v. Sampson, | "In the same case the court further said: 'It was not a case where nice distinctions could be made as to the position of the truck, the speed of the horse, and the danger which confronted unless he was stopped.' 71 App. Div. 177, 75 N. Y. Supp. 717. "So, in the present case, Whitworth saw the necessity for immediate action, and pursued the only possible means of saving Potts. In Peyton v. Texas & P. R. Co. 41 La. Ann. 864, 17 Am. St. Rep. 430, 6 So. 690, this court said: 'When one risks his life or places himself in a position of great danger in an effort to save another, or to protect another who is exposed to sudden peril or in danger of great bodily harm, it is held that such exposure and risk for such a purpose is not negligent. The law has so high a regard for human life that it will not impute negligence to an effort to preserve it, unless made under such circumstances as to constitute rashness, in the judgment of prudent persons.' See also Eckert v. Long Island R. Co. 43 N. Y. 502, 3 Am. Rep. 721, and Thompson on Negligence, §§ 198, 199, for a strong presentation of the subject. "That it is not rashness to voluntarily incur great danger to save another in peril is expressly decided by the supreme court of Ohio in Pennsylvania Co. v. Langendorf, 48 Ohio St. 316-322, 13 L. R. A. 190, 29 Am. St. Rep. 553, 28 N. E. 172. This court expresses itself thus: "There was but a fraction of a minute in which to resolve to act, or action would come too late. Under these circumstances, it would be unreasonable to require a deliberate judgment from one in a position to afford relief. To require one so situated to stop and weigh the danger to himself of an attempt to rescue another, and compare it with that overhanging the person to be rescued, would be, in effect, to deny the right of rescue altogether, if the danger was imminent. ""The attendant circumstances must be regarded: The alarm, the excitement, and confusion usually present on such occasions, the uncertainty as to the proper move to be made, the promptness required, and the liability to mistake as to what is best to be done, suggest that much latitude of judg ment should be allowed to those who are thus forced by the strongest dictates of humanity to decide and act in sudden emergencies. And the doctrine that one who, under these or similar circumstances, springs to the rescue of another, thereby encountering even great danger to himself, is guilty of negli gence per se, is neither supported by principle nor authority.' "In another case (Eckert v. Long Island |